People v. Cherry

67 A.D.2d 665, 412 N.Y.S.2d 35, 1979 N.Y. App. Div. LEXIS 10245

Opinion

— Appeal by defendant from a judgment of the Supreme Court, Kings County, rendered May 28, 1976, convicting him, upon a plea of guilty, of attempted murder of a peace officer, and imposing sentence. Judgment reversed, on the law and as a matter of discretion in the interest of justice, plea vacated, and case remanded to Criminal Term for further proceedings in accordance herewith. The court erred when it instructed the defendant that his lack of knowledge that his intended victim was a peace officer acting in the course of his official duties was not a defense to the crime to which he ultimately pleaded (see People v Harris, 67 AD2d 665). Under these circumstances, defendant’s plea cannot be permitted to stand, as it may not be considered knowing and voluntary (see People v Serrano, 15 NY2d 304; cf. People v Francis, 38 NY2d 150). Mollen, P. J., Rabin, Gulotta and Martuscello, JJ., concur.